Citation Nr: 1524046
Decision Date: 06/05/15 Archive Date: 06/16/15
DOCKET NO. 13-03 008 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office
in Muskogee, Oklahoma
THE ISSUE
Entitlement to additional Department of Veterans Affairs (VA) educational assistance benefits under the Post 9/11 GI Bill (Chapter 33).
ATTORNEY FOR THE BOARD
Patrick J. Costello, Counsel
INTRODUCTION
The appellant served on active duty from September 2001 to July 2005.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.
FINDINGS OF FACTS
1. In October 2011, the RO received the Veteran's electronically filed application for educational benefits under the Post-9/11 GI BILL program (Chapter 33) in lieu of benefits under the Montgomery GI BILL (MGIB) program (Chapter 30).
2. In October 2011, the RO issued the Veteran a letter indicating that she was eligible for 2 months and 21 days of Post-9/11 GI BILL benefits as those were the remaining benefits left on her MGIB.
CONCLUSION OF LAW
Entitlement to additional educational assistance, in excess of 2 months and 21 days, under the Post-9/11 GI BILL is not shown. 38 U.S.C.A. §§ 3301-24 (West 2014); 38 C.F.R. §§ 21.9520, 21.9550 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Duties to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2014). In the present case, the Board acknowledges that no VCAA letter was sent to the Veteran.
The United States Court of Appeals for Veterans Claims (Court), however, has held that VCAA notification procedures do not apply in cases where the applicable chapter of Title 38, United States Code contains its own notice provisions. See Barger v. Principi, 16 Vet. App. 132, 138 (2002) (VCAA notice was not required in case involving a waiver request). In the present case, specific VCAA notice was not required because the applicable regulatory notification procedure was contained in 38 C.F.R. § 21.1031 for education claims, not the VCAA. VA's duty to notify is outlined under 38 C.F.R. § 21.1031(b), and the duty to assist is outlined under 38 C.F.R. § 21.1032.
In the present case, however, the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002); see also Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOGCPREC 5-2004 (June 23, 2004). In fact, the applicable notification and assistance procedures for educational assistance claims under 38 C.F.R. § 21.1031(b) and § 21.1032(d) emphasize that VA has no further duty to notify or assist the claimant when the undisputed facts render the claimant ineligible for the claimed benefit under the law, as is the case here. Therefore, the Board finds that no further action is necessary under the statutory and regulatory duties to notify and assist.
Laws and Regulations-Education Benefits
In October 2011, the RO received the Veteran's electronically filed application for educational benefits under the Post-9/11 GI BILL in lieu of benefits under MGIB. Later that month, the Veteran's application was approved. She was informed that she only had 2 months and 21 days of Post-9/11 GI BILL benefits as that was the remaining MGIB benefit. See 38 C.F.R. § 21.9520(a) .
In March 2011, the Veteran requested that the effective date for her Post-9/11 GI BILL benefits be changed to June 2012. She explained that she intended to first exhaust all Chapter 30 benefits then start over with new Chapter 33 benefits.
In accordance with 38 C.F.R. § 21.9520(c)(1)(i), after an individual has applied for basic educational assistance benefits under the provisions of Chapter 33, and has met the minimum service requirements in paragraph (a) and (b), that individual then makes an irrevocable election to receive benefits under 38 U.S.C. Chapter 33 by relinquishing eligibility under either 38 U.S.C. Chapter 30, or 10 U.S.C. Chapters 106a, 1606, or 1607.
Pursuant to 38 C.F.R. § 21.9520(c)(2), an individual may make an irrevocable election to receive benefits under this chapter by properly completing VA Form 22-1990, submitting a transfer-of-entitlement designation under this chapter to the Department of Defense, or submitting a written statement that includes the following: (i) identification information (including the name, social security number and address); (ii) if applicable, an election to receive benefits under Chapter 33 in lieu of benefits under one of the applicable chapters listed in paragraph (c)(1)(i) of this section (e.g., 'I elect to receive benefits under the Post-9/11-GI BILL in lieu of benefits under the Montgomery GI BILL-Active Duty (Chapter 30) program.'); (iii) the date the individual wants the election to be effective (e.g., 'I want this election to take effect on August 1, 2009.'). An election request for an effective date prior to August 1, 2009, will automatically be effective August 1, 2009; and (iv) an acknowledgement that the election is irrevocable (e.g., 'I understand that my election is irrevocable and may not be changed.').
The criteria listed under 38 C.F.R. §21.9520(c)(2) are disjunctive rather than conjunctive which means only one of the requirements under this provision must be met for irrevocability to occur. See Johnson v. Brown, 7 Vet. App. 95 (1994) (noting that only one disjunctive "or" requirement must be met to satisfy the regulatory provision). Thus, based on the above-referenced regulatory provisions, an election to receive benefits under Chapter 33 can become irrevocable upon completion and submission of a VA Form 22-1990. A review of the Veteran's claims file reflects that she did in fact complete the appropriate form and it was electronically submitted and reviewed by VA. In the alternative, a Veteran has the option to either submit a transfer-of-entitlement designation under this chapter to the Department of Defense, or submit a written statement which includes the four specified criteria listed under 38 C.F.R. §21.9520(c)(2)(i)-(iv) in order for irrevocability to occur. If a Veteran has opted to submit a written statement, then his or her election to receive benefits under Chapter 33 becomes irrevocable only when all four specified criteria are met.
In this case, the irrevocability criteria listed under 38 C.F.R. § 21.9520(c)(2) have been met. Moreover, the Veteran has not contended that she did not know her election was irrevocable. Although the record does not contain an acknowledgement on the part of the Veteran reflecting awareness of the irrevocability criteria, the regulation does not explicitly impose this requirement on VA Form 22-1990. Indeed, the regulation does not specify that a completed VA Form 22-1990 must include a statement from the Veteran acknowledging that her election for Post-9/11 GI BILL program in lieu of benefits under the MGIB program is irrevocable. The regulation only requires that VA Form 22-1990 be properly completed for irrevocability to take effect. In other words, acknowledgement by the Veteran that her election for Chapter 33 benefits in lieu of Chapter 30 benefits is irrevocable is only necessary when the Veteran has opted to submit a written statement seeking Chapter 33 benefits, as an alternative to properly completing the VA Form 22-1990 or submitting a transfer-of-entitlement designation under this chapter to the Department of Defense for these benefits.
Moreover, the United States Court of Appeals for Veterans Claims (Court) has applied a presumption of regularity to all manner of VA processes and procedures. See Woods v. Gober, 14 Vet. App. 214, 220 (2000) (citing INS v. Miranda, 459 U.S. 14, 18 (1982); United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926). Thus, VA's electronic application program is deemed to have been properly developed to comply with the legal requirements for these benefits, including the irrevocable election as required under 38 C.F.R. § 21.9520(c)(1)(i). Further, a review of VA's website for filing the electronic application, http://www.gibill.va.gov, includes general information noting that the election for benefits under the Post-9/11 GI Bill is irrevocable. See http://www.gibill.va.gov/documents/pamphlets/ch33_pamphlet.pdf.
Thus, the Board finds that the irrevocability requirements set forth under 38 C.F.R. § 21.9520(c)(2) have been met and the Veteran did make an irrevocable election for educational benefits under the Post-9/11 GI BILL program when she completed the electronic (online) application. As such, her election for Post-9/11 GI BILL benefits is irrevocable and cannot be rescinded. There is no basis under the law to extend her benefits beyond the 2 months and 21 days that she had remaining.
The Board is sympathetic to the Veteran and her circumstances and is aware of her successes at school, but simply put, there is no legal or statutory authority to allow additional Post-9/11 GI BILL benefits.
Regardless of the equities of the Veteran's situation (particularly regarding the Veteran's contention that she did not know that applying for Post-9/11 GI BILL in lieu of MGIB benefits would cause her to lose the 12-month extension of benefits), VA can only pay benefits that are authorized by law. See McTighe v. Brown, 7 Vet. App. 29, 30 (1994) ("[P]ayment of government benefits must be authorized by statute; therefore, erroneous advice given by a government employee cannot be used to estop the government from denying benefits."); Harvey v. Brown, 6 Vet. App. 416, 424 (1994), (the remedy for breach of an alleged obligation cannot involve payment of benefits where the statutory eligibility requirements for those benefits are not met). It has been observed that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)).
Ultimately, the Board has no discretion to afford benefits where basic eligibility is not established under the law. Because the Veteran had not exhausted her Montgomery GI Bill benefits prior to her irrevocable election for Post-9/11 GI BILL, additional Post-9/11 GI BILL benefits must be denied.
ORDER
Entitlement to educational assistance benefits under the Post-9/11 GI BILL in excess of 2 months and 21 days is denied.
____________________________________________
James L. March
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs